Are Memes Legal as Fair Use?

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Are memes legal?

This is not always an easy question to answer. As a copyright fair use lawyer, it depends on the material you are using and what you are creating. It can also depend on how you are using the meme.

In particular, we ask about the app MeMatic, which is an iPhone application I recently downloaded on my iPhone. I bought the “Pro Version” which cost more and I posted a few meme posts on my Instagram account.

Today, I found a pop-up message on my phone that alerted me that there could be third-party copyright at issue and directed me to the Mematic terms of use (see below). In reviewing the terms they state their service is for “personal” use only and that the meme photos are AS IS.

This is why it is important to always check the terms of service before assuming you have a legal right to make commercial use out of photos or video memes.

That being said, there is a concept known as “FAIR USE” which is a statutory RIGHT to use photos and video clips for comment and criticism, parody and for “transformative use” purposes. This means when you add new meaning and expression to a photo or video. Fair Use is probably the most important legal doctrine that would make the use of MEMES LEGAL. But you must keep in mind there is a four-factor test that has to be satisfied.

Also, considering whether memes are legal or not, one should also consider more than just copyright infringement. 5 other causes of action could arise as well when considering memes:

1. Defamation (libel) - false statements in memes
2. Invasion of Privacy - (a) Using a meme that invades the privacy of another or (b) publicizes private facts, or (c) memes which place persons in a "false light"
3. Right of Publicity - using a photo of a person without their consent on a commercial website

Watch these privacy videos for more information about the above torts under California law.

1. False light - https://youtu.be/x-Ob0twINU8
2. Publication of private facts - https://youtu.be/m3m2OiyNI2o
3. Right of Publicity - https://youtu.be/eLmFe5ZN5rA
4. Invasion of Privacy (private affairs) - https://youtu.be/dbjOWgc3svE

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Mematic Terms of Use:

This app may display, include or make available content (including images, videos, gifs, and other data and information) that may be subject to copyright and other intellectual property rights under the law. This content is provided to you AS IS for your information and personal use only. You use this content at your own risk and discretion.

Hope you enjoyed this video. Don't forget to watch this video that talks about a case where a MEME lawsuit was filed and the Plaintiff won a 150k judgment following a JURY VERDICT!

https://youtu.be/PNT3F4M6h2I